Shaw v. KelloggShaw v. Kellogg
- Reporters:
- , , ,
- Before:
- Brewer
after stating .the case, delivered the opinion of the court.
In 1860, in settlement of a claim under a Mexican grant to land in the vicinity of Las Yegas, Congress passed an act giving to the claimants an equal amount of land, to be by them selected elsewhere in the Territory of New Mexico, stipulating that the land should be vacant and non-mineral and should be located within three years in square bodies not exceeding five
The party who challenges the title of the plaintiff to the particular portion of the tract in controversy in this suit entered at first into possession of it as a .tenant, and when at the termination of his lease he was refused a continuance thereof, took steps to maintain ~a possession and assert a right adverse to his former landlord. It is undoubtedly true that settled rules of -law cannot be ignored because in any particular case their application works apparent harshness. At the same time the result to which the contentions of the defendant‘.lead may well compel a careful examination of them.
These contentions are that Congress granted only non-mineral lands; that this particular tract is mineral land, and therefore by the terms of-the act is not within the grant; that no patent has ever been issued, .and therefore the legal .title has never passed from the Government; that the Land Department never adjudicated that this was non-mineral land, but on the contrary simply approved the location, subject to the conditions and provisions of the act of Congress, thereby leaving the question of title to rest in perpetual abeyance upon possible future discoveries of minerals within the tract.
In examining these contentions it is well to consider first
As the amount of the Las Vegas claim .was large, and as the claimants were required to make.their locations “in square bodies, not exceeding five in number,” each. location would necessarily be of a. tract of ‘considerable size; in fact, each one
•It will also be perceived that Congress did not permit this location to be made anywhere in the public domain, but only within the limits of the Territory of New Mexico. It was not like a military land warrant, subject-to. location upon any public lands, but only a grant which could be made, operative within certain prescribed and comparatively narrow limits — limits not even so broad as those of the territory ceded by Mexico. There were then but few persons living In New Mexico; it contained large areas of arid lands; its surface was broken by a few mountain chains, and crossed by a few streams. It was within the limits’ of this territory, whose condition and natural resources were but slightly known,.that Congress authorized this location. The grant was made in lieu of certain specific lands claimed by the Baca heirs in the vicinity of Las Yegas, and it was the purpose to permit the taking of a similar body of land anywhere within the limits of New Mexico. The grantees, the Baca heirs, were áuthorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands, must be vacant. Nor were they at liberty to select lands, which were then known to contain mineral. • Congress .did not intend to grant any mines or mineral lands,, but with these exceptions their right of selection was coextensive with the limits’of New Mexico. We say “ lands then known to contain mineral,” for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three years. The title was then to pass, and it would be an insult to the good faith of Congress to suppose that it did not intend that- the title when it passed should pass absolutely, and not contingently: upon subsequen t discoveries. This is in accord with the general rule as to the transfer of title to the public lands of the United States. In cases of homestead, preemption or townsjfe entries,
“We also say lands known at the time of their sale to be’ thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other’ kinds of land, in which, years afterwards, rich deposits of‘mineral may be discovered. It is quite possible that lands- settled upon as suitable only‘for agricultural purposes, entered ‘by.vthe settler and patented by the Government under the preemption‘laws, may be found, years after the patent: has been issued, to contain valuable minerals.. Indeed, this .has often happened. We, therefore, use the term known to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their - mineral character from what was supposed • whén the entry of them was-made and the patent issued.” ‘See also Colorado Coal Co. v. United States, 123 U. S. 307.
How was the character of the- land to ,be determined, and by whom? The surveyor■ general of New Mexico was directed to make survey and- location of the lands selected. Upon‘that particular officer was’ cast the specific, duty of seeing that-the lands selected were such as the Baca heirs were entitled to select. It is not strange that he was :the one named; for,, in the original act of 1854, which made pro-, vision for the examination‘of these various claims, the-duty of such examination \vas cast upon the same officer, and.he was. there required “ to ascertain the origin, naturé, character and’ extent of all claim‘s to lands under the’ laws, usages and customs of. Spain and Mexico; and; for this purpose, may issue notices, summon witnesses, administer oaths and do and perform all other necessary acts in the premises,” and it was upon his report that Congress’ acted. Further, he was the officer who, by Virtue of his duties, was most compétént to ■ examine and pass upon the question of the character of the, .lands selected. We do not mean that Congress thereby created an independent‘tribunal outside of and apart from the
It is also worthy of note that Congress aid not consider that there was any great probability of the discovery of mineral wealth in New Mexico. By the act of I860 it confirmed various claims, amounting to millions-of acres; confirmed, them absolutely and without any reservation of mines- then known or to be thereafter discovered within their limits.- And this, although under Spanish if not under Mexican law, all minerals were perpetually -reserved from such grants. 1 Bock-well’s Spanish and Mexican Law, p. 49, secs. 1, 2 and 3, pp. 112, 113 and 114. It made no appropriation for the exploration of the claims to be thereafter located, and although it required the completion of this location- within three years, it made but meagre appropriation for surveys, the appropriation’ in 1860 for surveying- both the public lands and private • land claims in New Mexico being only $10,000. Act of June 25, I860, o‘. 211, 12 Stat. 10.4, ,108.
. It will- also be perceived that the surveyor general, as well as the register and receiver of the land “óffice, each certified
But it is said that, the attention of the Land Department having been called to the fact that this location was made upon lands supposed to contain minerals, it was not satisfied with the requirements it.had originally made; was not content with the certificates’ demanded of the surveyor general and the register and receiver, and expressly disapproved the evidence in fact furnished thereby, and, also, that while it finally authorized an approval of the survey and location, it directed that the certificate of approval should contain the special reservations named in the statute; that is, that’ the location should not embrace mineral lands. It is undoubtedly true that the suspicions of the Land Department were aroused by the report that was made as to the supposed character of the land embraced within this location, and that by its letter of January T6, 1864, it held that the evidence furnished as to the ‘character of the land was not sufficient. This letter criticises the certificate of the surveyor general on the ground that, as-appeared from- an accompanying letter, it was based not solely upon his personal knowledge, but upon “information and conclusions deduced from reasoning.” It also notes the fact that the certificate of the register and receiver required by the instructions was wanting. There .’is’ a seeming conflict between the statements in this letter and the records of the surveyor general’s office. ’ The latter indicate that *the certificate of the register and receiver was forwarded with the
In this three things are to be noticed: First, that the surveyor general, the officer specially designated to make the survey and location, the one primarily charged with the duty of determining its character, decided that the land was non-mineral. His certificate to that effeet is unqualified. His certificate of approval to the field notes and the survey is the same. So far, therefore, as his action is concerned, there was an adjudication that the land was non-mineral. Second, the Land Department directed that the matter be closed, specified how it should be closed, and received and filed without question the report of the surveyor general’s action. Third, the only qualification or limitation is found in the direction.of the Land Department, followed by the action of the surveyor general^ in adding to his certificate of approval of the plat the proviso that it is “subject to the conditions and provisions of section 6 of the act of Congress of June 21, 1860.” There was no reservation of the matter for further consideration in the Land Department or by the surveyor general. There was a finality so far as they were concerned.
What is the significance of, and what effect can be given to the clause inserted in the certificate of approval of the plat that it was subject to the conditions and provisions of the act of Congress? We are of opinion that the insertion of any such stipulation and limitation was beyond the power of the Land Department. Its duty was to decide and not to decline to decide; to execute and not to refuse to execute the will of Congress. It could not deal with the land as an owner and prescribe the conditions upon which title might be .transferred.
“The position that the patent to the-plaintiff should have contained a reservation excluding from its operation all buildings and improvements not belonging to him, and all rights necessary or proper to the possession- and enjoyment of the same, has no support in any legislation of Congress. The land officers, who are merely agents of the law, had no authority to insert in the patent any other’ terms than those of conveyance, with recitals-showing a compliance with the .law and the conditions which it prescribed.”
Further, it must be noticed that the Land’ Department has since 1864 again and again decided that the action then taken was final, that the land had been segregated from the public domain and become private property. Thus‘; so far as the iudgment of the -executive branch of the government is con
Defendant relies largely on the decision of this .court in Barden v. Northern Pacific Railroad, 154 U. S. 288, in which it was held that lands identified by the filing of the map of definite location as within the scope of the grant made by Congress to that company, although at the time of the filing of such map not known to contain any mineral,’ did not pass under the grant’ if before the issue of the patent mineral was discovered. But that case, properly considered, sustains rather the contentions of the plaintiff. It is true there was a division of opinion, but that division was only as to the time at which and the means by which the non-mineral character of the land was settled. The minority were of the opinion that the question was settled at the time of the filing of the map of definite location. ■ The majority, relying on the language in the’ original act of 1861 making the grant, and also on the joint resolution of January 30‘, 1865, which expressly declared’ that such grant should not be “ construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States,” held that the question of mineral or non-mineral was open to consideration up to the time of issuing a patent. But there was no division of opinion as to the question that when the legal title did pass — and it passed unquestionably by the patent — it passed free from the contingency of future discovery of minerals.
Deferring to the contention that if the question of mineral was open for consideration until the issue of a patent there would be great uncertainty in titles, the court said (pp. 326-7):
“We do not think that any apprehension of disturbance in titles from the views we assert néed arise. The law placésunder the supervision of the Interior Department and its subordinate officers, acting under its directionj the control of all matters affecting the disposition of public lands of the United States, and the adjustment of private claims to them under the legislation of Congress. It can hear contestants and decide upon the respective merits of their claims. It can investigate and settle the contentions of all persons with respect to. such claims. It can hear evidence upon and determine the ’ character, of lands to which ■ different parties assert a right; and when the controversy before it is fully considered and ended, it can issue to the rightful claimant the patent provided by law, specifying that- the lands are of the character for ■which a patent is. authorized.”
It quoted these words from the opinion in Smelting Company v. Kemp, 104 U. S. 636, 640:
“The execution and record of the patent áre the final acts of the officers of the Government for the transfer of its title, ■and, as they can be lawfully performed, only after certain steps have been taken,’ that instrument, duly signed, countersigned and sealed, not merely operates to pass the title, but is in.the nature of an official declaration by that branch of the Government to which the alienation of the public lands, under the law, is. entrusted, that all the requirements preliminary to its issue ‘have been complied with.. The presumptions thus “attending it are not open to rebuttal in an action at law.”
And added (329-330):
“ There are undoubtedly many cases arising before the hand Department in the disposition, of the public lands where it will be a matter of much difficulty on the part of its officers to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands, and in such cases the rule adopted that they will be considered . mineral or agricultural, as they are more valuable in the one class’ or the other, may be sound. The officers will be governed by the knowledge of the lands-obtained, at the time as to their real character. The determination of .the. fact by those officers that they are one or the other will be considered • as conclusive. ” ’ . •
* * * • * *
It is true that the patent has been issued in many instances without the investigation and- consideration which the public interest requires; but if that has been done without fraud, though unadvisedly, by officers of the Government charged with the duty of supervising and attending to the preparation and issue of such patents, the consequence must be borne by the Government until by further legislation a stricter regard to their duties-in that respect can be enforced upon them. .The fact remains that under,the law the duty of determining the character of the lands granted by Congress, and stating it in instruments transferring the title of the Government to the grantees, reposes in officers of the Land Department.”,
But, it is said, no patent was issued in this case, and therefore the holding in the
Barden
case, that the issue of a patent puts an end to all question, does not apply here. But the significance of a patent is that it is evidence of the transfer of the legal title. There is no magic in the word “ .patent,” or in the instrument which the word defines. By it the legal title passes, and when b}r whatsoever instrument and in whatsoever manner that is accomplished, the same result follows as though a formal patent were issued.
Rutherford
v. Greene, 2 Wheat. 196, 206 ;
Bryan
v. Forsyth, 19 How. 334;
Langdeau
v.
Hanes,
21 Wall. 521, 531, in which this court said: “ If the claim be to quantity, and not to a specific tract capable of identification, a segregation by survey will be required, and the confirmation will then immediately attach the title to the lands segregated.” The land passes out of the jurisdiction of the Land Department. The grant has then become complete,-and the only remedy for any wrong in the transfer of such title is through the courts, and not in the Land Department.
Michigan Land & Lumber Company
v.
Rust,
168 U. S. 589, 592, and cases cited in the opinion. In this case the Land Department refused to issue a patent; decided that it had no power to do so, and that the title wras complete without one. It would seem strange’ to hold that the lack of a patent left the question of mineral an open one when there wTas no authority for the issue of a patent, when-it was -in fact refused and when the
Summing up the whole matter it results in this : Congress in 1860 made a grant of a certain number of acres, authorized the grantees to select the land within three years anywhere in the Territory of New Mexico, and directed-the surveyor general of that territory to make survey and location of the land selected, thus casting upon that officer the primary duty of‘, deciding whether the land selected was such as the grantees plight select. They selected this-tract. Obeying the statute and the instructions issued by the -Land Department, that . officer approved the selection and made the- survey and loca
We are of. opinion that at this late day the title of the locators and their grantees is not subject to challenge, and that it is a full, absolute and unconditional title.
The judgment of the Circuit Court will, therefore, Toe reversed and the case remanded for a new trial.